Amid hypotheticals dealing with restaurants serving soup that contains shellfish and fruit cups without strawberries, the US Supreme Court struggled on October 7 to make sense out of the Federal Vacancies Reform Act of 1998. That Act deals with federal employees serving in an "acting" capacity in a position that requires Senate confirmation. The case involves a period of time during which Lafe Solomon served as Acting General Counsel of the NLRB. NLRB v. SW General [Supreme Court briefs] [Argument transcript]. The DC Circuit held that Solomon was serving unlawfully, that an unfair labor practice complaint was unauthorized, and thus an NLRB order could not be enforced. SW General v. NLRB (DC Cir 08/07/2015) [Opinion text].

FVRA 3345 deals with filling an executive agency vacancy in a position which normally involves an appointment by the President and the consent of the Senate. Subsection 3345(a)(1) says the duties normally devolve to the first assistant to the office. However, the President can – instead – appoint someone who has already been approved by the Senate for some other position (Subsection 3345(a)(2)) or appoint someone who is a senior employee in the same agency (Subsection 3345(a)(3)).

However, Subsection 3345(b)(1) says: "Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if … such person … served in the position of first assistant to the office of such officer for less than 90 days." As the DC Circuit pointed out, "Solomon was never a first assistant at all so the exceptions plainly do not apply to him.."

The NLRB's argument is that Subsection 3345(b)(1) applies only to first assistants who serve in an acting capacity under Subsection 3345(a)(1), and has no application folks like Solomon who were serving in an acting capacity pursuant to Subsections 3345(a)(2) or 3345 (a)(3).

SW General's argument is that Subsection 3345(b)(1)’s restrictions apply to all acting officials named pursuant to subsection 3345(a).

It all seems to boil down to how you read "notwithstanding." It looks to me like the Court is equally divided when it comes to reading the statutory text. It could well be that the Court will be swayed by the NLRB's argument – pushed hard at oral argument – that the executive branch has always interpreted the statute the way the government now wants it interpreted, and Congress has never squawked about that. Congressional silence is usually a horribly weak argument, but it could be decisive in this case.